Judge Upholds Most of Virginia’s New Background Check Law, Blocks Enforcement on 18-20-Year-Olds

virginia gun rights

Demonstrators stand outside a security zone before a pro gun rally, Monday, Jan. 20, 2020, in Richmond, Va. (AP Photo/Julio Cortez)

From the AP:

A Virginia judge on Tuesday upheld much of a new state law that expands background checks for gun buyers but issued an injunction preventing it from being enforced on buyers between 18 to 20 years old.

Virginia Attorney General Mark Herring intends to appeal the injunction, his office said in a statement.

The law was one of seven gun control measures passed by the new Democratic majority at the General Assembly this year. It requires a background check for any gun sale, even between private individuals.

The judge wrote that the act was “facially valid,” “valid based on historical justifications” and “facially constitutional.” But he wrote that the state is currently unprepared to administer it in a way that does not infringe on the right of adults under 21 to buy a handgun.

That’s because federal law does not allow a federally licensed firearm dealer to sell a handgun to anyone under 21, or to run a background check on a person attempting to make such a purchase, Herring’s office said.

Virginia Attorney General

Virginia Attorney General Mark Herring (AP Photo/Cliff Owen, File)

“Universal background check systems only work if they are truly universal, and we believe this potentially dangerous judicially created loophole is without basis in the law,” Herring said in a statement. “So while the judge agreed with nearly all of our arguments and largely upheld the law, we believe that this injunction, though limited and narrow, is worthy of higher review.”

The lawsuit was filed in late June in Lynchburg Circuit Court by the Virginia Citizens Defense League and five other plaintiffs. Their attorney did not immediately respond to a message from The Associated Press seeking comment.

comments

  1. avatar Cadeyrn says:

    VACDL needs to do much more careful pre-filing reviews to bring these actions in front of the most favorable judges possible. Here’s a hint: you cannot bring these actions in the Greater Richmond area, Lynchburg, Charlottesville, Alexandria, Arlington, Fairfax, Loudoun or anywhere in Tidewater. I’m sure there are a few others. Bring up an election map and compare it to a Second Amendment Sanctuary map and pick the reddest one with the best judge who writes – no pun intended – bulletproof opinions.

    There is a reason why the Dems bring particular cases before their favorite judge from Hawaii and then to the 9th Circuit: they have those courts in their pockets and it is really difficult for interested parties living elsewhere in the nation to get there to be heard.

    You need to follow that example and look at Abingdon or the far Western part of the state where they may have actually seen a gun before and maybe even hunted a bit or gone target shooting from time to time. You know… where the POTG may actually live.

    1. avatar I Haz A Question says:

      Off topic, I know, and I’m shamelessly plugging this as close to the top of the comments as possible for viewership, so I’ll perform my walk of shame (later, though):

      Ginsberg has been hospitalized again. “…fever and chills…possible infection…”

      The chills you feel are from the Grim Reaper exhaling on the back of your neck.

      https://www.zerohedge.com/markets/supreme-court-justice-ginsburg-hospitalized-possible-infection

      1. avatar tsbhoa.p.jr says:

        ~cough~ “rona, is that you?” ~sneeze~

        1. avatar Geoff "Guns. LOTS of guns..." PR says:

          Redd Foxx, wasn’t it?

      2. avatar doesky2 says:

        Even if she dropped dead tomorrow the RINOs in senate won’t let Trump get someone approved before election.
        Starting with Mitt the Shit.

        1. avatar Geoff "Guns. LOTS of guns..." PR says:

          Try anyways, at the least it will fire up Trump supporters like nothing else… 🙂

        2. avatar Green Mtn. Boy says:

          Speaking of Mitt and Shit,the people of Utah should feel like a particular manure pit I’m aware of at a dairy in Pleasant Grove,you can cover it up but it still reeks of shit,Congratulations on your pick.

        3. avatar Doc Samson says:

          As we are finding out, a true conservative is a very rare bird indeed…

      3. avatar Geoff "Guns. LOTS of guns..." PR says:

        “Ginsberg has been hospitalized again. “…fever and chills…possible infection…”

        “Coffin Dance”

        1. avatar Hunter427 says:

          What was awesome, thank you. Made my day

        2. avatar Klaus Von Schmitto says:

          Not a bad way to go out.

      4. avatar Green Mtn. Boy says:

        “Ginsberg has been hospitalized again. “…fever and chills…possible infection…”

        A person of her advanced age can only have a infection so many times before the reaper can be put off yet again.

        1. avatar Geoff "Will the witch meet her bucket of water?" PR says:

          I’ll pray to Allah if that’s what it takes.

          I just want *results*… 🙂

        2. avatar MAGA says:

          I’m picturing that scene in The Mummy, where Benny is praying to several different gods, one at a time, to get what he wants.

          Each time, he says “No? Okay….” before holding up the next religious symbol on his necklace to pray to the next god.

  2. avatar Sam I Am says:

    This is absurd. Federal law regarding restrictions on the age at which a person may purchase a firearm through an FFL does no prohibit a state exercising its reserved right to create laws of conduct within a state. That is, where federal law does not address a class of citizen (18-20yr olds), does not preclude a state from doing so (9th and 10th Amendments).

    Following the logic of the federal courts ruling that 18yr olds are competent adults able to contract with equal standing of those 21 and older, the ruling places 18-20yr olds in a position in federal law superior to those 21 and older. Creating such a donut hole is just mentally deficient. The state of Virginia acted to ensure state law covered all persons of legal age to purchase firearms.

    1. avatar Baldwin says:

      The state of Virginia acted to ensure “unconstitutional” state law covered all persons of legal age to purchase firearms.

      FIFY. In spite of the judge (er, uh… judicial legislator) claiming the law “facially valid”, it significantly infringes on RKBA.

      1. avatar Sam I Am says:

        “In spite of the judge (er, uh… judicial legislator) claiming the law “facially valid”, it significantly infringes on RKBA.”

        True, but not the issue. The logical fallacies in the decision/injunction are indefensible. Courts have become so accustomed to twisting logic to meet their goals they are now leading to gibberish that the courts themselves cannot even see.

        1. avatar Ing says:

          The way I read it, having decided (albeit wrongly) that universal background checks were legal, the judge had to make that donut hole because there is literally no way to perform the required background check on people age 18-20. If they were subject to the new law, every single one of them would be denied (and that’s neither defensible nor intended…yet).

          It’s a ridiculous result, but perfectly logical in context.

    2. avatar Anymouse says:

      This is running into a similar issue as the Nevada UBC. The FBI says it won’t run private checks, only FFL. Under 21 can’t buy handguns from an FFL, but can be gifted one or buy from an in-state private party. Again, not something the FBI will run a check for, or would fail if done for FFL, so transfer wouldn’t be allowed. It’s a small loophole made because antigunners don’t know anything about guns or gun laws.

    3. avatar Ed Schrade says:

      We are getting lost in the weeds again which is the purpose of all this b s . The federal and state as well as local governments have no authority or jurisdiction over any rights mentioned in the bill of rights. None of this is legal and should be refuted and ignored.

  3. avatar Green Mtn. Boy says:

    All gun control laws are un Constitutional and repugnant to the said Constitution,PERIOD.

    1. avatar ChoseDeath says:

      Absolutely.

      1. avatar I Haz A Question says:

        How can any judge who swore an oath to uphold the Constitution say with a straight face that background checks are “facially constitutional”???

        They turn the foundational notion of presumption of innocence on its head, requiring a person to stop, pay a fee, and wait for permission from the unelected and unaccountable Background Check faeries before being able to exercise an explicitly protected right.

    2. avatar Sam I Am says:

      “All gun control laws are un Constitutional and repugnant to the said Constitution,PERIOD.”

      OK, then. Game over. We can go about our business with no worries regarding the Second Amendment.

      Glad someone was astute enough to settle that.

      1. avatar Green Mtn. Boy says:

        I fear to settle it it will require a second American revolution, never the less the statement is correct unless you would care to argue on behalf of gun control..

        1. avatar Chief Censor says:

          The government realized long ago they can make any rule by using judges and police. The Constitution has become invalidated by judges, lawyers, mayors and police chiefs.

          We should give the cops more money so they can enforce Virginia’s gun control. If we give even more they could enforce the new normal regarding the viruses.

  4. avatar Heywood says:

    This was a lawsuit destined to fail in Virginia and the only real purpose it served was to become the “glorious failure” to rally around in order to gin up outrage and hopefully turn out voters in November. The problem is that this and other suits in play in VA are going to generate bad precedent that will not only affect Virginia gun rights, but gun rights in other states too.

    Courts often look to other states in order to rationalize or justify a ruling they want to make. If it’s an extraterritorial ruling, they’ll refer to it only as a reference to uphold what they want, not look at it like a court precedent. Virginia courts at the appeals and supreme court level have only had a few bites at the right to keep and bear arms apple, and each time they get a case, they destroy it a little more. When the VA supreme court ruled against DiGiacinto, they effectively ruled the Virginia bear arms constitutional provision was essentially a state regulated privilege, carrying with it no more protection than the 2nd amendment at the time. There was no standard of scrutiny, no real bear arms decisions at the federal level and at the time, Virginia had pretty strong state level preemption of localities, but not preemption of state agencies, and limited preemption of state created “authorities”. In this context, the VA Supreme Court ruled that (GMU) could ban firearms anywhere but on the public sidewalks in effect. This meant that any state creation could ban firearms and it would not be a constitutional violation.

    The next lawsuit doomed to fail is the Doug Wilder special, only one handgun per month or “handgun rationing” This law does nothing for VA, rather, it’s VA getting on its knees to suck NY’s ****. NY loves to crow about the “iron pipeline” aka, I-95, asserting their thugs run south to buy guns, and bring them back home. it’s only a half truth, mostly their thugs steal guns, rather than straw purchase them, but the democrats made handgun rationing a platform and promised to die on that political hill when it was repealed, and it was JOB 1 when they got the majorities back.

    Unfortunately, the current legal state does not favor challenges to state gun laws in VA, OR in the 4th US Circuit, which was – and largely remains a “collective rights” circuit.

    When they lose the one handgun a month case, other states looking to ration handguns – or other arms, will be emboldened and NY will put pressure on those states to do the same.

    NYC actually was sending investigators down to VA to “conduct stings” attempting to straw purchase guns. They broke the law doing it, but VA did not pursue charges against them. They did it in years past too.

    The only way out for Virginia is to win back the general assembly not with republicans, but with pro gun candidates. They are not the same. Court challenges will siphon much needed money in a tilt against windmills, which can better be used to get good candidates into office. People of the Gun, not partisan republicans. Then they need to secure a repeal of the handgun rationing law – again, and the red flag confiscation law. Start with achievable goals, back them stay on message and drive the message home to legislators.

    Stay the hell out of court in Virginia !

    1. avatar Baldwin says:

      “The only way out for Virginia is to win back the general assembly not with republicans, but with pro gun candidates. They are not the same.”

      They are NOT the same. Truth.

    2. avatar M1Lou says:

      The RPV is worthless. They only care about new subdivisions and making sure their developer buddies are making money. If you run against their candidates in a primary, they will do everything they can to see that you lose. If you win, they won’t support you against the Democrat. Money wins elections, and if you are handicapped in that area, you will lose. It’s almost a 90% chance that the person with more money wins. The other problem is the RPV fails to run candidates in the commonwealth. You can’t win if you don’t play. Until the country club RPV becomes an organization based on principles of liberty, VA will continue to slip into petty tyranny and absolute government control.

      The VCDL does the best the can with what they have to work with. I do agree that we need to pick favorable courts to start the ball rolling. We need to look at things strategically. I’m not 100% sure how courts are picked to file. Always go for the Saint Benitez types for filing. They actually follow the constitution and don’t torture language to fit a predetermined outcome.

      1. avatar Heywood says:

        To be fair, RPV knows the numbers and knows that running candidates in Fairfax, Arlington, Alexandria, Prince William and Loudon is a lost cause. Why?
        -influx of NY / NJ residents into the DC suburbs. Since Fairfax is pretty much full, and most NJ/NY residents can’t afford to live in Fairfax county or city, they push out to Loudon or Prince William. No joke, you can make over $100,000 / year and qualify for public housing in Fairfax county.
        – Sanctuary status everywhere around DC has brought in a large non-English speaking demographic and infrastructure. They’re generally hard working Latinos, but, have large, extended families who use infrastructure but don’t pay taxes.
        – over the last 20 years, while the General Assembly was conservative, Northern Virginia was sending fiercely socialist assemblymen, with one or 2 exceptions. Each of the remaining republican seats disappeared over the last 10 years. NoVA is now 100% democratic representation in the assembly.
        – voters migrating to Northern Virginia have been about 85% democratic. While Arlington, and Alexandria city were already that far left, Fairfax, Prince William and Loudon were not until recently. Loudon trails behind, but has been besieged with density housing like Fairfax and is about 60% democratic now.
        – The Republican party successfully demotivated NoVA republicans through a series of poor nominations of RINO candidates and party loyalists like George Allen. They talked a good game and didn’t deliver when the opportunity was there. Instead voters got a nothing burger from them, but kept being solicited for donations.
        – The dems, on the other hand, were honest about raising taxes, punishing vehicle owner/operators for not using public transportation, free and unfettered access to abortions through all 3 trimesters and up to a few minutes after birth.

        So the current state and national party knows Virginia is lost for the foreseeable future. It’s basically becoming New Jersey south.

        I want to revisit the court issue. Just to be clear, there is no safe district to open a challenge from In VA. The few precedents that exist for bearing arms in VA are very bad rulings. Even if a judge ignored the precedent – because it is wrong – the appeals and supreme court would bigfoot it in no time.

        Challenging gun laws in Virginia courts is manifestly stupid. Not one of the branches of VA government is even remotely pro-gun. The only saving grace is that VA is a part time legislature in session for 45 or 60 days. Unfortunately, if a court of record gets one of these challenges, every gun owner in VA can suffer for it.

        The smart play here is to withdraw the court cases now, before a bad, precedent is set like with the GMU case. I mean sure, the plaintiffs and friends will be able to raise money off the solicitations for donations and the eventual glorious defeat, but they’re going to lose and lose big. The writing’s not only on the wall, it’s in the case law.

        withdraw the cases, spend the money on assembly candidates where you can win; Stafford and southward and outside the population centers. Focus time, money and effort on unelecting recognized and vulnerable dems. Run your own pro-gun candidate, not some Nancy the Republican party makes you think you have to accept. Make and example of 1-2 of the virulent antigun candidates and run credible campaigns against them. Either defeat them, or financially wound them sufficiently to cost them their seat the next time around.

        once assembly votes can go your way again, change the laws that actually matter to courts so they don’t get the opportunity to undercut your rights.

        That’s the way back.

        1. avatar Cadeyrn says:

          They also need to run a pro-gun candidate in every single district. They cannot let the Dems have 25% plus districts which are completely uncontested. This lets the Dems shift their time, money and focus to increasingly marginal districts where they eke out wins and increase their margins.

          If they’re not going to do that, they may as well formally announce their abandonment of Virginia and go try to find some other state to salvage. Frankly, they may as well do that since somehow Governor Northam, who was caught with a robed Klansman and someone in blackface on his medical school yearbook page, was still allowed to stay in office. If that doesn’t get him carried out of town on a rail, I don’t know what else could aside from him actually getting drunk and spewing racial epithets on video.

  5. avatar tommy2fer says:

    A politician with a law never stops a bad guy with a gun.
    He merely controls the good guys, which is his true intention.

    1. avatar Baldwin says:

      Again, well said.

  6. avatar RV6Driver says:

    Who cares…. 90% of the counties aren’t gonna enforce it. Funny we get more gun laws in the midst of a “defund the police” movement.

  7. avatar Ralph says:

    Gov. Coonman will do anything to control black people, then he’ll tell them it’s for their own good, and they will believe it.

  8. avatar Debbie W. says:

    Gov. black face and his gun control democrat party slave masters have no problem carrying on an agenda rooted in racism and genocide.

    If people want to do something meaningful call out the democRat Party for its long, long history of racism and hold the democrat party liable for Monetary Reparations.

  9. avatar Doc Samson says:

    Too much talk! When does Hulk smash?! Just kidding… kind of… but not really…

  10. avatar RGP says:

    Blocks enforcement on 18-20 year olds….

    Isn’t that Antifa and BLM’s predominant age group?

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